In re I.I.G.T.

• Decision Date: 07 October 2013
• Docket Number: No. 05–11–01109–CV.,05–11–01109–CV.
• Parties: In the Interest of I.I.G.T., A Child.
• Court: Texas Court of Appeals

412 S.W.3d 803

In the Interest of I.I.G.T., A Child.

No. 05–11–01109–CV.

Court of Appeals of Texas, Dallas.

Oct. 7, 2013.

Andrea Nation, The Nation Law Firm, Cynthia Woolen Allen, The Allen Law Firm, John Nation, Dallas, for Appellants.

Daryl Gordon, Law Office of Daryl T. Gordon, Plano, Steven Morris, Steven R. Morris, Esq., Charlottesville, VA, Gabriella Bendslev, Office of the Attorney General, Dallas, for Appellees.

Before Justices FITZGERALD, FRANCIS, and MYERS.

OPINION

Opinion by Justice MYERS.

This appeal concerns the standing of a person not related to the child to bring a suit affecting the parent-child relationship (SAPCR). The trial court granted the child's mother's plea to the jurisdiction and dismissed Roderick Alexanders suit to establish conservatorship. In his sole issue on appeal, appellant contends the trial court erred by granting Mother's plea to the jurisdiction. We affirm the trial courts judgment.

BACKGROUND

The child was born October 23, 2001 in Louisiana. In March 2009, Mother completed an acknowledgment of paternity stating appellant was the child's biological father. Three months later, Mother filed a petition in Dallas to rescind the acknowledgment of paternity. Appellant filed a general denial and a counterpetition requesting he be appointed joint managing conservator with Mother and that the court order genetic testing to establish his status as the child's father. On September 1, 2009, genetic testing established that appellant was not the child's father. Mother asserted appellant lacked standing to bring his counterpetition and moved for dismissal of appellant's suit. On November 18, 2009, the trial ordered “this case be dismissed for lack of evidence, due to test results showing that [appellant] is not the father of [the child].” The court also ordered that appellant be omitted from the child's birth certificate and that appellant was denied custody and visitation.

On December 9, 2009, the court entered an amended judgment that found appellant was not the biological parent of the child but found he was “a psychological dad,” and the court appointed Mother and appellant joint managing conservators. Mother filed a motion for new trial, which was granted.

In April 2010, Mother filed another plea to the jurisdiction asserting appellant lacked standing to bring his suit for conservatorship, and on April 26, 2010, the trial court held a hearing on the plea to the jurisdiction. On December 23, 2010, the trial court granted the plea to the jurisdiction, ¹ dismissed appellant's counterpetition for conservatorship, and denied all his claims for relief. Appellant filed a motion for new trial and a motion for reconsideration; following a hearing, the trial court denied the motions.

STANDING

In his sole issue, appellant contends the trial court erred by sustaining Mother's plea to the jurisdiction and dismissing appellant's counterpetition seeking conservatorship for lack of standing.

A person seeking conservatorship of a child must have standing to bring suit. In re M.K.S.–V., 301 S.W.3d 460, 463 (Tex.App.-Dallas 2009, pet. denied). Standing is a component of subject-matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex.1993); M.K.S.–V., 301 S.W.3d at 463. We review standing under the same standard we use for subject-matter jurisdiction generally: whether the pleader alleged facts that affirmatively demonstrated the court's jurisdiction to hear the cause. Tex. Ass'n of Bus., 852 S.W.2d at 446;M.K.S.–V., 301 S.W.3d at 463. When reviewing an order dismissing a cause for want of jurisdiction, appellate courts “construe the pleadings in favor of the plaintiff and look to the pleader's intent.” Tex. Ass'n of Bus., 852 S.W.2d at 446 (quoting Huston v. Fed. Deposit Ins. Corp., 663 S.W.2d 126, 129 (Tex.App.-Eastland 1983, writ ref'd n.r.e.)). When a plea to the jurisdiction challenges the existence of jurisdictional facts and the evidence raises a fact question as to those facts, the fact issue must be resolved by the trier of fact. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex.2004).

Standing in SAPCRs is governed by the family code, and a party bringing a SAPCR must plead and establish standing under the family code's provisions. M.K.S.–V., 301 S.W.3d at 464. If the party fails to do so, the trial court must dismiss the suit. Id. A party's standing to pursue a cause of action is a question of law. Id. A court deciding a plea to the jurisdiction should consider evidence and review the substance of the legal claims only to the extent necessary to determine whether subject-matter jurisdiction over the case exists. In re M.P.B., 257 S.W.3d 804, 808 (Tex.App.-Dallas 2008, no pet.); see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). When, as here, the trial court makes no separate findings of fact and conclusions of law, we must draw every reasonable inference supported by the record in favor of the trial court's judgment. M.P.B., 257 S.W.3d at 808. We review the trial court's implied factual findings for legal and factual sufficiency, and we review the trial court's implied legal conclusions de novo. Id. Under both standards, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and we will not disturb the court's resolution of evidentiary conflicts that turn on credibility determinations or the weight of the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.2005); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003).

In this case, appellant alleged standing to bring a SAPCR under section 102.003(a)(9),² which provides:

(a) An original suit may be filed at any time by: ...

(9) a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition....

Tex. Fam.Code Ann. § 102.003(a)(9) (West Supp.2012). In computing the time under that provision, “the court may not require that the time be continuous and uninterrupted but shall consider the child's principal residence during the relevant time preceding the date of commencement of the suit.” Id. § 102.003(b). A “principal residence” is (1) a fixed place of abode; (2) occupied consistently over a substantial period of time; (3) that is permanent rather than temporary. M.K.S.–V., 301 S.W.3d at 464;M.P.B., 257 S.W.3d at 809.

Appellant filed his SAPCR on July 14, 2009. Appellant testified he had sole possession of the child for six months in 2005. Appellant testified he had possession of the child and “maintained care, custody, and control” of the child every weekend in 2009 pursuant to a “permanent arrangement” between him and Mother. He also picked up the child from daycare and school once or twice a week. He testified the child has her own bedroom at his house that she decorates herself. Appellant also testified he was at almost every medical and dental appointment of the child's. He stated he had attended all the school functions where the child received trophies and awards. He said he did everything a father would do. He testified he was involved in disciplining the child and helped with her physical, emotional, and health requirements. He stated he contacted Mother about any problem with the child, but he said Mother did not always contact him with the child's problems. He also testified to financial support for the child, including paying for her daycare; buying her clothes, shoes, and school supplies; providing her with food at his house; getting her hair done; and “school projects and programs.” He presented evidence that Mother listed him as the child's father on records with the child's school and the YMCA.

Mother testified the child never “lived with” appellant but would only “visit him.” During some summer breaks, the child stayed with appellant's mother. Mother also testified that she and appellant discussed having the child live with appellant during the 2009 to 2010 school year, “but this was not an agreement that we had, no. That was a discussion.” Mother agreed that appellant had a significant past relationship with the child. Mother testified she listed appellant as the child's father on the school and YMCA forms to simplify his being able to pick up the child if she was not able to pick her up. She testified that on weekends and holidays, appellant would ask if he could take the child. Mother testified that if she did not have any plans, then she would let appellant take the child. She testified they did not have a plan for his possession of the child; instead, she thought he was just a friend helping her out.

Appellant argues this case is analogous to three other cases, In re M.K.S.–V, 301 S.W.3d 460 (Tex.App.-Dallas 2009, no pet.), Doncer v. Dickerson, 81 S.W.3d 349 (Tex.App.-El Paso 2002, no pet.), and In re M.P.B., 257 S.W.3d 804 (Tex.App.-Dallas 2008, no pet.). In M.K.S.–V., two women living together decided to rear a child, and one of the women conceived through in vitro fertilization. Id. at 462. When the child was a year old, the women separated, but they entered into an agreement for the nonparent to have regular access to and possession of the child. Id. They followed this schedule for two years. Id. However, when the mother refused to let the nonparent have further access to the child, the nonparent filed suit seeking to be appointed joint managing conservator. Id. The trial court dismissed the suit, concluding that the nonparent lacked standing. Id. at 463. We reversed and concluded the parties' agreement for possession of the child was similar to the standard possession order under the family code. Id. at 465;seeTex. Fam.Code Ann. § 153.312 (West Supp.2012) (standard possession order for parents residing within 100 miles of one another). We...